Good Afternoon All,
Is anyone aware of any court rulings, articles etc. on the intent of 165' (Or similar, ie 330' 660')
The situation:
Received a call from a client of mine about an 85 lot subdivision he is trying to sell. One of the parcels that makes up the subdivision is the south 165' etc....the old survey and engineering plans have this line as 168.47. It appears to me that the surveyor went to the land line as opposed to just going 165'. I have not seen the survey or the land but my client has asked me to meet with them tomorrow to discuss. Knowing the general area going to the land line is probably what the 165' intent was.
In the past at times I have gone the 165' and other times the land line. Mainly based on the evidence i find in the field.
I was curious if any of you were aware of any rulings etc.
Thank you and have a great day!
Charlie
Assuming that the 165' was originally intended to be 10 rods, but measures 168.47' on the ground, can you determine if other lots have a similar distance as if the entire line was prorated from end to end or is the excess all in a final lot?
165' could mean one of several things. If it was written as the S 165' of a nominal 330' parcel, then (prior to any actual establishment) it can be reasonably read as "The S 165' according to the measurements made by the first person on the ground who is authorized to make those measurements", or as "The S 1/2 of the record 330' parcel."
If the line has been previously established, then it means "The S 165', more or less, to get you to the vicinity where you will find and established boundary, said boundary is where it is regardless of what your new measurements find in excess of or less than 165'."
A call like that has no intent of its own. It is merely the expression the parties to the original conveyance used to describe what they intended. To determine that intent, unless you have the opportunity to speak directly with those parties, or they left an established boundary to show what was intended, one needs to consider who may have written the description, consider what they knew or believed regarding the parent parcel, and consider all possible reasonable interpretations of the phrasing given the expertise (or lack thereof) and the actual knowledge regarding the property of those parties at the time the conveyance was made.
This is where Karoly is supposed to jump in with that quote about placing oneself in the positions of the original parties.
I don't think of a particular case-law as making a determination on what you do every time. There are always going to be different circumstances surrounding the description. That is for instance, if other parts of the parent tract had been already transferred away, those descriptions might influence your decision. Also you are probably retracing a boundary, and how it was first laid out should influence your decision. I wouldn't go changing the interpretation if someone had already laid it out proportionately for instance.
A literal interpretation of the deed would result in 165', because that's what it said. If you are staking the property for the first time and there is no ground evidence to the contrary, why wouldn't you use what the deed says if it doesn't encroach or contradict other previously-transferred properties?
